CHARLESTON – At some point, West Virginia lawyers and their colleagues across the country will pick up resignation letters in pen and paper and tinker with them, just as their predecessors did in early 2017.
It’s all part of a nearly 200-year-old political patronage system that’s still alive and well today: when a new president takes office, he can choose new US attorneys along with new US marshals, and so on.
Whether it makes sense in 2021 depends on who you ask.
Bill Wilmoth was a US attorney for Northwest Virginia from 1993 to 1999, serving as Agent for President Clinton. Wilmoth resigned early, but if he had stayed through 2001 he would have offered Wilmoth’s resignation and President George W. Bush would have accepted him.
But Wilmoth, now at Steptoe & Johnson in Wheeling, believes the system will work.
“I think it’s healthy. It is a political position with enormous discretion. And I think a new president has the right to expect his own people to be in those positions, just like the finance minister or some other office like this, ”said Wilmoth.
“I was not dismissed from office because of these years of practice. Every time something changes, US lawyers practically always change. I think with this job there is a risk of inhaling your own fumes for too long, ”said Wilmoth.
“And so I think a couple of years is good practice. I’ve been in the job for about five or six years. I probably could have stayed the total of eight, but I didn’t. “
John Kilwein is the Chair of the Political Science Department at West Virginia University, specializing in law and politics. He’s also someone who believes the system could use some adjustment.
“It is a longstanding tradition that all US attorneys, when a new administration takes office, hand in a letter of resignation that gives the new president the latitude to replace those he wishes, and most are replaced in the end. This is essentially due to the patronage / loot system of American politics developed by Andrew Jackson. These appointments allow the president to reward the local Poles for their electoral support, ”said Kilwein.
“And these local politicians reward local actors who have helped them and cared for future stars. Whether it is good or bad is a normative question; Personally, I believe that it is bad and that we should have a DOJ that is as isolated as possible from the political motivations of the President, the AG, Congress and local actors.
“The abuses of the Trump administration with regard to the DOJ, especially the actions of the AG [William] Barr, underline that if we simply rely on norms to regulate the government, especially the administration of justice, we are in a very dangerous area, ”said Kilwein.
“However, elections have ramifications, and a government should have US attorneys willing to implement the new administration’s guidelines. A simple example is deciding whether to apply for the death penalty in cases where it is legally available. The Obama administration essentially had a moratorium on the sentence, and AG Barr has resumed it.
“We have seen similar changes, for example in relation to police misconduct, where Obama (government) relied heavily on consent forms to reform local PDs and AG Sessions ended the practice because he argued that the government was good partners with the Must be locals.
“It is clear that President Biden will trace it back to keeping the feet of the local PDs by the fire, and he and his AG will want US attorneys on board that policy change,” Kilwein said.
“In a perfect world when we all have employees [Department of Justice] Positions, including local [U.S. attorneys] and their assistants, with an impartial merit selection system, we shouldn’t have to worry about that – think of every other advanced democracy in the world, Canada, Britain, France, Germany and so on and so forth.
“But we don’t and we have to deal with this contradiction in the political selection of US attorneys who should do their work apolitically, fairly, without fear or favor, in order to pursue truth, justice, the American way and apple pie. Every American has to choose [herself] or ourselves if we do it well, ”said Kilwein.
Clarksburg attorney Tom Dyer said he always thought it was a strange thing to oust US lawyers when a new president of another party takes office.
“I understood the political reason behind it,” he said. “But the intellectual wisdom of the idea is not good; it just throws a wrench into the process. “
“My experience has been that most of the support people, the US assistant attorneys, do most of the work and these people will usually keep them. It’s like a baseball team and we’re replacing the managers, not the players. You seldom see the US chief attorney appointed by the president in court who is involved in prosecuting a criminal case. These people are just organizational leaders, ”Dyer said.
“I worry that if there are faces related to the pursuit of important matters, it may lead to internal investigations into how and why these decisions are made and whether they are politically motivated,” Dyer said.
He added that he saw such a face decades ago in West Virginia.
“Personally, I never felt that any of the men I worked with were unsuitable for the position. I just always felt that once someone was in the position, unless they did something that could be identified as inappropriate or inappropriate, “Dyer said.
But the reality is that once there is another party in the White House, US lawyers will be replaced en masse.
That “only seems to fly in the face of the nature of the American republic and its system of scrutiny with the executive, judiciary and legislature”.
“Politics shouldn’t be part of the judiciary and the justice system,” Dyer said. “It is and it was historical, but maybe it should be looked at now.”
It may be time to make a constitutional amendment that requires a president to “identify an articulate reason” before replacing a US attorney, Dyer added.